State v. McSpaden

• Decision Date: 20 February 1897
• Parties: STATE ex rel. ING, Prosecuting Attorney, v. McSPADEN et al.
• Court: Missouri Supreme Court

39 S.W. 81

137 Mo. 628

STATE ex rel. ING, Prosecuting Attorney, v. McSPADEN et al.

Supreme Court of Missouri, Division No. 1.

February 20, 1897.

QUO WARRANTO — ANOTHER PROCEEDING PENDING — SCHOOL DIRECTORS.

1. A quo warranto proceeding in the name of the state on the relation of a prosecuting attorney is not abated by the pendency of a former proceeding for the same relief in the name of the prosecuting attorney on the relation of private persons, which, under Rev. St. 1889, § 7390, could not be discontinued without the consent of the relators.

2. The qualifications required by Rev. St. 1889, § 8086, providing for the election of school directors "who are * * * voters," are mandatory, and therefore the election of a woman as school director is void.

Quo warranto by the state of Missouri on the relation of V. V. Ing, prosecuting attorney of Wayne county, against Lillie McSpaden and others, to try title to office. Judgment of ouster.

S. R. Durham, for relator. J. C. Carty, for respondents.

BARCLAY, C. J.

This is a proceeding, original in this court, to ascertain by what warrant defendants assume to act as directors of a school district in the city of Piedmont, in Wayne county. The action was begun by an information exhibited by Mr. Ing, the prosecuting attorney of that county. The defendants are Mrs. Lillie McSpaden and Messrs. Lee, Clare, and Bates. The defendants are charged with having taken forcible possession of a schoolhouse in Piedmont by virtue of their pretended offices, and to be usurping generally the powers of said offices without lawful authority. The history of the unfortunate difference that gave rise to these proceedings need not be given at any great length. The defendants' counsel at the bar concede that all of the defendants (except Mrs. McSpaden) are not entitled lawfully to act as directors, so the case is narrowed to a consideration of the official standing of Mrs. McSpaden. We shall assume, for the purposes of this hearing (though there is an issue on that point in the pleadings), that she was duly elected to the office of school director. The serious objection interposed to her exercise of the duties of the office is that she cannot be permitted to hold the office, because of her sex. On her part there is an earnest and able argument to show that the objection just mentioned is not valid. A further defense is based on the fact that a prior information in quo warranto was filed in the circuit court of Wayne county (long before the proceeding in this division of the supreme court was begun). It is claimed that while that action is in progress the pending action here should be abated. The case in Wayne county was instituted against Mrs. McSpaden, alone, in August, 1896, by the same prosecuting attorney, Mr. Ing, but upon the relation of certain private persons, named therein as relators. The circuit court entered a rule for defendant to answer; but the service thereof was afterwards quashed by the court for insufficiency, and another rule to the same purport was entered, returnable at the February term, 1897. There is nothing before this division to show that this rule was served on the said defendant before this action was brought, November 11, 1896. The facts which we consider decisive of the case are admitted.

1. The...